Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6746
SECOND DITTISION Docket No.
6515
2-CFM-MA-174
The Second Division consisted of the regular members and in
addition Referee Irving T. Bergman when award was rendered..
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
(
(,
( Clinchfield Railroad Company
Dispute: Claim of Employee:
1. That under the terms of the Agreement, Machinist J. D. Knicely
was unjustly and improperly held out of service April 10 and
11, 1972.
2.
That accordingly the Cliachfield Railroad Company be ordered
to compensate him. in theamouat of eight (8) hours pay at the
straight time rate for each of the dates claimed. And further,
be ordered to discontinue this practice of requiring employee
to fill out and sign forms MED·1 and MED-2, releasing past,
present and future medical history.
Findings:
The Second Division of the Adjustment Hoard, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employee involved in
this dispute are respectively carrier and employs within the meaning
of the Railway Labor Act as approved June 21, 193.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing
thereon.
Claimant was off from work 14 days for
illness due
to mumps which
he said his family had been sick with for the past week or so, Employees;'
Exhibit A-1. The Carrier's records disclosed that claimant was off
due
to illness for 103-days in 1971 and for 28 days out of 70 work days
in 1972
preceding the illness in this case. The claimant states that
the absence
in 1971
was the result of surgery and that absence.ia 1972
was charged to vacation.
This claim resulted when claimant returned on April 4, and was
permitted to work April
4, 5
and
6.
He was off on April 7 to take his
saa to the hospital; Carrier asserts that claimant reported off sick on
the 7
th. Carrier also asserts without contradiction that claimant left
during
his work hours on a number of occasions, explained by the claimant
as due to kidney stone attacks.
Form 1 Award No. 6746
page 2 Docket No.
6515
2-CER-MA-t
74
The Carrier contends that claimant was permitted to work
3
days
inadvertently and on April
6
was informed that he would be given a
reasonable time to have his doctor fill out a medical report form
IUD-9, Carrier's Exhibit No. 10, and in the meantime could continue
to work. The Organization has argued that the requirements of
MED-9
are an invasion of claimant's rights; that it was a new form, the
requirement for which the Organization had no prior knowledge or
information. Claimant did not have the form completed by his doctor
and was then advised that he could
not
return to work until he would
be examined by the Carrier's doctor at the Carrier's expense. An
appointment was made for April 11, which claimant refused to keep
because it was on one hour's notice. The Carrier states without
contradiction that claimant lived
5
blocks from the doctor's office and
had ample time. Nevertheless, an appointment was made for April 12.
Claimant kept this appointments was examined and returned to work without
further loss of time.
The Organization's first claim letter stated a twofold purpose;
a time claim and to abolish the laactice of requiring a medical report,
Employees' Exhibit A-1, Carrier's Exhibit 1. In its letter to the
highest officer reference is made only to a time claim, Employees'
Exhibit A-9, Carrier's Exhibit
7.
The Carrier contends that the
Organization abandoned the claim to abolish the practice of requiring
medical forms. The Organization states that it referred only to the .rr~'":
time claim finally, because the Carrier had not replied to this item
in its answers. In addition, the Organization has asserted that the
Carrier discriminated against claimant in violation of
Rule 12.
The
Agreement contains no Rule with reference to procedure in case of illness
or requirement for medical reports or physical examination.
We find that this Board has no authority to
issue
a declaratory
judgment or to grant injunctive relief, and we concur with the reasoning
set-forth in Second Division Awards
6160, 6162
and~others to the same
effect, including PLB N0.
889
by Referee John H. Dorset'.
We find that the Carrier did not discriminate against the claimant.
The Organization conceded in its Rebuttal on page
5,
that the Carrier
has the right to question the physical condition of an employs. The
information required by MED-9 is a standard doctor's report, is not an
invasion of rights and is not discriminatory. We agree with the
Carrier's right to a physical examination or a doctor's report although
it is not provided for in the Agreement, Third Division Award No. 18317,
Awards 6269, 6233
and 561.
Furthermore,
it is common knowledge that
"mumps" is contagious and may result in serious complications in an
adult male.
Form 1
Page 3
Award No. 6746
Docket No.
6515
2-CRR-NIA-' 74
The timing of the Carrierls request for a doctor's report, however,
provides as arguable consideration; especially when the requirement was
new on the property and prior information concerning it had not been
provided to either the employes or to the Organization. Although
the Carrier acted promptly to make an appointment for the physical
examination and did so within a reasonable time after the claimant
returned to work, notice of one hour was not reasonable. The claimant
was assigned to a shift from 1.1:00 P.M.to 7:00 A.M. and could not
reasonably be expected to be available on one hour's notice when he was
on his own time. On the other hand, the need for the examination
resulted fray the failure of the employs to obtain the doctor's report.
Under all the circumstances, the claimant should not be required to
suffer the entire burden for a result which was partly due to the Carrier's
inadvertence. We find that the claimant should be entitled to be
compensated for
8
hours at the straight time rate.
AWARD
Claim Disposed Of As Stated Above.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
Natiaazal Railroad Adjustment Board
4T
emarie Hrasch - Administrative Assistant
Dated at Chicago, Illinois, this 30th day of July, 1974.
_,\